Does Tuolumne County already have water rights? TUD lawyer says it’s murky | New

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A retired Pacific Gas and Electric Co. executive believes Tuolumne County already has water rights under provisions included in a 1983 deal with the utility giant, but the attorney for the first The region’s water and sewer agency says it’s not so clear due to the complexity of modern water law.

The arguments resurfaced this week after the District of Tuolumne Utilities, the main water supplier for most of the county’s population, announced that PG&E had halted years-long negotiations between the two entities over a possible deal. allowing TUD to acquire some of the company’s assets and water rights. in the South Fork Stanislaus River watershed.

According to information provided by TUD, PG&E indicated that the pause could last at least until 2023 due to “PG&E’s desire to reassess its long-term strategy on how best to optimize the ownership and operation of its power generation assets”.

TUD officials, who have long coveted control of the water supply currently held by PG&E and provided to the district free of charge each year under the 1983 agreement, have expressed frustration at being so close to realizing what has eluded many others in the past.

“It’s frustrating to have come so close to finalizing a deal to gain local control of these PG&E assets, because it would have benefited everyone in the county,” said Barbara Balen, chair of the board of directors. TUD. prepared remarks.

Opponents ofan acquisition by TUD of the water rights and assets of PG&Eseized upon several paragraphs of the 1983 agreement with PG&E for free water which they claim gives the community water rights.

David Sweitzer, a retired PG&E executive who has lived in Sonora for 33 years, recently presented to TUD on what he believes is evidence that Tuolumne County already owns rights to 37.5 cubic feet per second of water. PG&E water. He said TUD should process the information “for full transparency” about the now-suspended negotiations between the company and TUD, which he called “this costly takeover”.

Sweitzer shared a copy of a 42-page document that includes a 27-page purchase agreement from 1983, signed on June 3, 1983 by people from PG&E, the chairman of the Tuolumne County Board of Directors and the clerk of the county, and filed with the county clerk on June 27. 1983.

Page 1 includes the subheading “1. Buying and Selling. The County hereby agrees to purchase from PGandE and PGandE hereby agrees to sell to the County the Tuolumne Water System, hereinafter referred to as the “System”, as follows:”

Page 2 includes the subtitle “e. Certain consumptive water rights associated with the System, as more particularly described in Schedule C attached hereto and forming part hereof. »

Page 28 of the attached document is titled Exhibit C, it is titled “Water Rights Included in the Sale of the Tuolumne Water System”, and it lists the diversion rights of Sullivan Creek, Curtis Creek and Mormon Creek for 20CFS, 7.5 CFS, 5 CFS and 5 CFS, with priorities dating from 1852, 1866, 1852 and 1852, respectively.

When asked how something like water rights could remain secret for so many years, Sweitzer replied, “I can’t answer that. It is plain English in writing, and it is recognized by state agencies and the federal government in the documents required to authorize FERC-regulated projects. Sweitzer added that PG&E has not been underhanded.

John Buckley, executive director of the Central Sierra Environmental Resource Center at Twain Harte, on Wednesday applauded the pause in negotiations between PG&E and TUD and referenced Sweitzer’s research.

“This actually makes sense for TUD customers, as newly uncovered information revealed that TUD had already obtained water rights from PG&E years ago for 37.5 cubic feet per second of water,” said Buckley said. “That’s about the amount of water TUD needs for the water supply of all TUD customers. So despite the erroneous claims that Tuolumne County and TUD supposedly have no water rights, in reality the 1983 purchase agreement secures water rights to TUD.

Jesse W. Barton, the Sacramento-based attorney for TUD, reviewed the documents Sweitzer provided on Wednesday and said that 10 or 15 years ago he might have been inclined to accept “these arguments.”

However, since the National Water Resources Control Board began tightening reporting on its water use reports and requiring meters on nearly all diversions about 12 years ago, Barton said that it had become clear that the “water rights” listed in Exhibit C are either “no real water rights at all” or “much smaller than described and not something that can be seriously considered as a Tuolumne County water supply”.

Barton said that about 10 years ago, due to additional scrutiny imposed by the State Water Resources Control Board with the passage of Senate Bill 8 in the 2009 legislative session -2010 and related legislation, the TUD began to monitor water more closely from the “water rights”. on Sullivan Creek, Curtis Creek and Mormon Creek.

TUD staff “realized that these diversions were not diversions of natural water from these systems, but diversions of water that PG&E was delivering into these creek systems and then diverting that same water out of of the system downstream from the point of delivery,” Barton said. .

In other words, PG&E was using natural stream channels to transport foreign water—water not from that stream system—and move that water to different areas. PG&E did this, like many other water rights owners, to avoid building a redundant and unnecessary ditch system when a natural system could provide the same service, Barton said.

The use of a watercourse system in this manner is explicitly permitted by Section 7075 of the Water Code: water that has been appropriated may be diverted into the channel from another watercourse. water, mixed with its water, then recovered. But by retrieving it, water already appropriated by another will not be diminished, Barton said.

New, stricter reporting requirements by the National Water Resources Control Board have allowed TUD staff to review these “water rights” and determine that they are not water diversions. natural, Barton said. These are simply diversions of the already appropriated South Fork Stanislaus water that PG&E delivered to the listed stream systems, mixed with the natural water, and then retrieved that same amount of water from the stream system. water.

As a result, TUD has stopped reporting water use under these “rights” because it is now illegal to “double” water use in this way, Barton said, referring to the article 5107 of the Water Code.

Some people may call these types of “water rights” simply “water rights on paper” because they are just water claims with no evidence of diversion and use, Barton said.

It’s also worth noting, Barton said, that you can’t add up the water rights listed in Exhibit C because the stream systems listed – Sullivan, Curtis, Mormon – dry up completely during the summer and fall or are reduced to a trickle.

“They cannot provide reliable water in significant quantities during the summer and fall, which is when Tuolumne County needs water the most,” Barton said. “The only significant and reliable source of water for Tuolumne County is the South Fork…In sum, without the supply from the South Fork, Tuolumne County could not exist in the way residents currently see it. “

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